➥ CASE SUMMARY OF:
Afro-continental Nigeria Ltd. V. Joseph Ayantuyi & Ors. (SC.323/1990, 12th day of December,1995)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Undertaking as to damages;
A case is an authority for what it decides.
➥ CASE FACT/HISTORY
The plaintiffs by a Writ of Summons commenced an action against the defendants in Ondo State High Court holden at Ondo seeking for vurious declaratory reliefs and an order of perpetual injunction to restrain all officers, servants, agents and functionaries of the defendants from trespassing on or unlawfully taking possession of the “‘aforesaid land.” The plaintiffs thereafter filed a Motion on Notice praying the court for an order of interim injunction restraining the defendants from ejecting the plaintiffs from the land or disturbing them thereon and generally to maintain the status quo ante pending the determination of the substantive suit. The motion was supported by a 32 paragraph affidavit. The defendants opposed the motion for injunction and filed a 13 paragraph Counter-Affidavit, Para. 6 of the Counter-Affidavit which was sworn to by one Toluwa Olopete read thus – “‘6. That when the Rubber Board Company wound up, the assets disposal committee of the Commodity Boards assigned the unexpired term of its interest in the land now the subject matter of this present action to a company Afro-Continental (Nigeria) Limited in which the Ondo State Government has 35% shares.” But despite the revelation above of the presence of Afro-Continental (Nigeria) Limited on the land in dispute, the Company was not made a defendant in the action. The motion was finally argued. The learned trial Judge in a reserved ruling granted the injunction sought by the plaintiffs.
The appellant filed a short brief in the Court of Appeal wherein the single issue for determination was stated thus – “Whether the learned trial Judge was right in granting the order for interlocutory injunction wit/wilt extracting an undertaking as to damages from the plaintiffs.” Meanwhile the plaintiffs, now respondents, also filed a respondent Notice of Intention to vary the Order of Injunction granted by the Ondo High Court.
The Court of Appeal carefully considered the submissions of counsel and Uche Omo. J.C.A. (as he then was) concluded his leading judgment (with which Ejiwunmi and Edozie U.C.A. agreed) in these words-
“I have therefore come to the conclusion that whilst the learned trial Judge erred in failing to extract an undertaking as to damages when he made his order of injunction, this Court can obtain such an undertaking from the plaintiffs/respondents through their counsel, and allow the injunction ordered by the trial Judge to continue. It is therefore hereby ordered specifically that counsel for the plaintiffs/respondents gives to the Registrar of this Court a signed undertaking as offered by him in his Notice of Intention to Vary the judgment filed by him. The order of injunction made by Dr. O.O. Aguda J. on 17/7/89 in this matter subsists. In effect the appeal partly succeeds and the application to Vary; the judgment also succeeds. There will be no order as to costs.”
In its consideration of the first issue of whether or not this was a proper case in which an undertaking as to damages was necessary, the learned Justice had stated on page 264 of the judgment thus – “The conclusion arrived at therefore must be that this is not a proper case in which it can be held that an undertaking in damages is unnecessary … In other words the giving of an undertaking as to damages was necessary in this case. I need hardly say that conclusion clearly recognises that there may exist a situation where the giving of an undertaking may not be necessary.’
Being dissatisfied with the judgment or the Court of Appeal which upheld the order of injunction made by the High Court and varying same by ordering the plaintiffs/respondents to give an undertaking as to damages, the appellant has now further appealed to this Court.
➥ ISSUE(S)
I. Whether the Court of Appeal was right in rejecting the appellant’s contention that the order for injunction granted by the Ondo State High Court ought to have been set aside on the ground that an undertaking as to damages had not been extracted from the plaintiffs when the order for injunction was made?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE RATIO IN KOTOYE v CBN IS INAPPLICABLE TO THIS CASE
‘The ratio in Kotoye case is therefore that it is wrong for any court to grant an interlocutory injunction ex parte. The ex parte application in Kotoye was incompetent and consequently the Supreme Court had to strike it out as the appropriate order. All pronouncements or utterances on the requirement or necessity of an “undertaking as to damages” and consequence of failure thereof were therefore merely obiter and I so hold. It is rather unfortunate that Chief Ajayi who was counsel for the appellants in Kotoye case is now appellants’ counsel in this case as well. His submissions in Kotoye urging the Supreme Court to extract an undertaking as to damages from the appellants in that case to ground the interlocutory injunction, failed because Chief Ajayi in my view, misconceived the principal issue therein. The real issue in Kotoye was that the ex parte application for the interlocutory injunction was incompetent and had to be struck out. You just simply cannot put something on nothing! It will collapse. And Kotoye actually collapsed.
Chief Ajayi, I say with respect, has once again misconceived the real issue before us in this appeal. He thought this is the time to get the Supreme Court to eat its own words, having rejected his earlier and the same submission in Kotoye.’
‘I have already made it known that the powerful statements of law on the requirement of an undertaking as to damages and consequences of failure thereof in Kotoye were obiter. Kotoye’s case is therefore not an authority to say that “in every order of an interlocutory injunction, if there is no undertaking as to damages the order must be set aside”, as Chief Ajayi would want us to believe. Kotoye did not so decide as shown above. The Court of Appeal was therefore right in rejecting the appellants’ contention that the order for injunction granted by the Ondo State High Court ought to have been set aside on the ground that an undertaking as to damages had not been extracted from the plaintiffs when the order for injunction was made. That was not the decision in Kotoye or any other case. The single issue for determination is therefore resolved against the appellant.’
‘But before I close I wish to state again that in this present appeal the High Court granted the order of interlocutory injunction without an order of undertaking as to damages. On appeal to the Court of Appeal the respondents filed a respondents’ Notice and urged the Court of Appeal to vary the order by extracting an undertaking as to damages from them. Their request was granted and the order was varied. I think the Court of Appeal was right in its decision. Wide powers are vested in that court under and by virtue of section 16 of the Court of Appeal Act, 1976 under which it can and ought to make orders which should have been made by the lower courts where it deemed it necessary so to do.’]
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.
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✓ DECISION:
‘The appeal having failed it is hereby dismissed. The plaintiffs/respondents are awarded costs assessed at one thousand (N1,000.00) Naira against the applicant/appellant only.’
➥ FURTHER DICTA:
⦿ WHERE OBITER DICTUM BECOMES BINDING ON A LOWER COURT
An Obiter dictum of the Supreme Court is clearly not binding on this court or indeed on the lower courts, for obiter dicta, though they may have considerable weight are not rationes decidendi and are therefore not conclusive authority. See American International Insurance Co. v. Ceekay Traders Ltd. (1981) 5 S.C. 81 at page 110. Where however an obiter dictum in one case has been adopted and becomes a ratio decidendi in a latter case, such obiter dictum will be taken to have acquired the force of a ratio decidendi and would therefore become binding. See Victor Rossek and others v. African Continental Bank and Another (1993) 8 NWLR (Pt.312) 382. — Iguh JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kutigi J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief G.O.K. Ajayi, SAN.
⦿ FOR THE RESPONDENT(S)
L. O. Fagbemi.
A. A. Akindele, Chief Legal Officer, Ministry of Justice, Ondo State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 16 Court of Appeal Act 1976: ‘16. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings an any question which the Court of Appeal thinks it fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceeding had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the court for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”’
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
